No. 1529 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 0846, 0847 April Term, 1975.
Charles S. Lieberman, Philadelphia, for appellant.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result.
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Appellant contends that the lower court erred in refusing to read his requested instruction on the issue of
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alibi.*fn1 We agree and, therefore, vacate the judgment of sentence and grant appellant a new trial.
On March 12, 1975, Philadelphia police arrested and charged appellant and another man with robbery*fn2 and criminal conspiracy.*fn3 Appellant and his co-defendant were tried before a jury from January 13, 1976, through January 20, 1976. At trial, the complaining witness testified to the following version of events. On March 12, 1975, he went to a drug rehabilitation center at 3rd and Arch Streets in Philadelphia to watch a free movie. He remained at the center from approximately 6:00 p. m. until about 8:00 p. m. While there, he saw appellant and his co-defendant in the lobby before the movie and during an intermission. When he left the center, he proceeded west on Arch Street. At 6th Street, appellant and his co-defendant approached him from behind, and suggested that all three men walk together. The complaining witness agreed. As the three men walked west along Arch Street, they engaged in light conversation. When the group reached 11th Street, the co-defendant suggested that they buy a bottle of wine. The complaining witness bought a bottle of wine at a state liquor store at 12th and Arch Streets. The three men then proceeded
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east on Arch Street, entered a parking lot, then exited onto Cuthbert Street, near 11th Street. Here, appellant offered the complaining witness a drink of wine. He accepted and then said he had to leave. Before he could leave, appellant grabbed him and threw him against a wall. Appellant threatened to cut him with a knife if he resisted. The co-defendant removed about $50 and some cigars from the victim's pockets. Appellant and his co-defendant then fled, and the victim ran to the intersection of Filbert and 11th Streets where he notified a police officer he had been robbed.
Two police officers testified for the Commonwealth. While driving north on 13th Street, the officers received a bulletin about the robbery over the police radio at 8:10 p. m. The bulletin reported that two Negro males, one very tall and one very short, both wearing levis and dark jackets and both about twenty years old, had committed the robbery, at knifepoint. The policemen saw appellant and his co-defendant standing outside the Terminal Bar, located one or two stores north of the northeast corner of 13th and Filbert Streets. Appellant and the co-defendant attempted to flee, first by running east on Filbert Street and then, when the police car followed this route, by reversing their direction. The police ultimately apprehended the two suspects at the northeast corner of 13th and Filbert Streets.
The defense called a bartender who worked at the Hedgeman Beef and Ale Bar, located at 1229 Filbert Street, on the night of March 12, 1975. The bartender testified that appellant and his co-defendant entered the bar "around 7:30, something like that." The bartender asserted three times that they stayed "about a half hour, twenty minutes." They left "about five or ten minutes" before they were arrested. According to the bartender ...